Kawashima v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AKIO KAWASHIMA; FUSAKO 
KAWASHIMA,
Petitioners, No. 04-74313
v.  Agency Nos.
A38-554-590
ERIC H. HOLDER JR., Attorney A38-554-591
General,
Respondent.

AKIO KAWASHIMA; FUSAKO  No. 05-74408
KAWASHIMA, aka Fusako Nakajima,
Petitioners, Agency Nos.
v.  A38-554-590
A38-554-591
ERIC H. HOLDER JR., Attorney
ORDER AND
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 8, 2007—Pasadena, California
Filed January 27, 2010
Before: Diarmuid F. O’Scannlain, Edward Leavy, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge O’Scannlain
1653
1656 KAWASHIMA v. HOLDER
COUNSEL
Judith L. Wood, Law Offices of Judith L. Wood, Los Ange-
les, California, argued the cause for the Petitioner, and filed
briefs; Todd Beacraft, Law Offices of Judith L. Wood, Los
Angeles, California, was on the briefs.
Nancy Freedman, Office of Immigration Litigation, Washing-
ton DC, argued the cause for the Respondents; Peter D. Keis-
ler, Assistant Attorney General, Civil Division, M. Jocelyn
Lopez Wright, Assistant Director, and James A. Hunolt,
Senior Litigation Counsel, Office of Immigration Litigation,
Washington DC, were on the brief.
KAWASHIMA v. HOLDER 1657
ORDER
The opinion filed on July 1, 2008, and appearing at 530
F.3d 1111 (9th Cir. 2008) is withdrawn. The superseding
opinion will be filed concurrently with this order.
The government’s “Petition for Rehearing En Banc” is
DENIED as moot.
The parties may file new petitions for rehearing or rehear-
ing en banc as provided by Federal Rule of Appellate Proce-
dure 40.
OPINION
O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether petitioners’ convic-
tions for subscribing to a false statement on a tax return and
for aiding and assisting in the preparation of a false tax return
qualify as “aggravated felonies” that subject them to removal
under the relevant immigration laws.
This is our third published opinion in this case. In our first
opinion, Kawashima v. Gonzales, 503 F.3d 997 (9th Cir.
2007), withdrawn 503 F.3d 1111 (9th Cir. 2008)
(“Kawashima I”), we conducted a limited examination of the
record of petitioners’ convictions to answer such question.
One day after our panel opinion was filed, our en banc court
decided Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.
2007) (en banc), which caused us to reconsider. We published
a second opinion, Kawashima v. Mukasey, 530 F.3d 1111 (9th
Cir. 2008), withdrawn ___ F.3d ___ (9th Cir. 2010)
(“Kawashima II”), in which we answered the question by
applying Navarro-Lopez to Kawashima’s conviction in light
of our circuit’s existing caselaw construing the statute defin-
ing “aggravated felony.”
1658 KAWASHIMA v. HOLDER
After we published our second opinion, the government
filed a petition for rehearing en banc. While the government’s
petition was pending before us, the Supreme Court granted
certiorari in Nijhawan v. Attorney General, 523 F.3d 387 (3d
Cir. 2008), cert. granted, 129 S. Ct. 988 (2009). Like the case
before us, Nijhawan concerned whether a particular convic-
tion for a financial offense constitutes an “aggravated felony”
under relevant immigration laws. After the Court issued its
opinion, Nijhawan v. Holder, 129 S. Ct. 2294 (2009), we
ordered the parties to file supplemental briefs on Nijhawan’s
impact on the case before us. In light of this recent guidance
from the Court, we issue this hopefully final opinion in this
litigation.
I
Akio Kawashima and Fusako Kawashima1 are natives and
citizens of Japan. The Kawashimas were admitted to the
United States as lawful permanent residents on June 21, 1984.
In 1997, Mr. Kawashima pled guilty to subscribing to a
false statement on a tax return, in violation of 26 U.S.C.
§ 7206(1). In his plea agreement, he stipulated that the “total
actual tax loss” for the purpose of determining his offense
level under the Sentencing Guidelines was $245,126. Mr.
Kawashima further conceded that he could be ordered to pay
the same amount in restitution. On the same date, Mrs.
Kawashima pled guilty to aiding and assisting in the prepara-
tion of a false tax return, in violation of 26 U.S.C. § 7206(2).
Her plea agreement was not included in the record before us.
On August 3, 2001, the Immigration and Naturalization Ser-
vice2 issued separate Notices to Appear to the Kawashimas
1
We refer to Akio as “Mr. Kawashima” and Fusako as “Mrs. Kawashi-
ma.” We refer to Akio and Fusako collectively as the “Kawashimas.”
2
On March 1, 2003, the Immigration and Naturalization Service (“INS”)
ceased to exist as an agency under the U.S. Department of Justice and its
functions were transferred to the Bureau of Immigration and Customs
Enforcement within the newly-formed Department of Homeland Security.
We refer to the INS and its successor as the “Service.”
KAWASHIMA v. HOLDER 1659
alleging that the couple was removable because their prior
convictions constituted aggravated felonies under 8 U.S.C.
§ 1101(a)(43)(M)(i) (“subsection M(i)”) (defining as an
aggravated felony any offense that “involves fraud or deceit
in which the loss to the victim or victims exceeds $10,000”).
See id. § 1227(a)(2)(A)(iii) (stating that “[a]ny alien who is
convicted of an aggravated felony at any time after admission
is deportable”).3
After holding a removal hearing, an Immigration Judge
(“IJ”) concluded that the Kawashimas’ convictions were
aggravated felonies under subsection M(i). Accordingly, the
IJ found the Kawashimas removable, denied their motion to
terminate the proceedings, and ordered that they be removed
to Japan.
The Kawashimas appealed the decision, and the Board of
Immigration Appeals (“BIA”) remanded because the tran-
script containing the testimony of the hearing and the IJ’s oral
decision was defective. After further proceedings, the IJ again
denied the Kawashimas’ motion to terminate proceedings and
ordered them removed to Japan. The BIA affirmed and
adopted the IJ’s decision.
The Kawashimas subsequently filed a motion to reopen
seeking waiver of inadmissibility under the Immigration and
Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c)
(repealed 1996). The BIA denied the motion as untimely.
The Kawashimas timely filed separate petitions for review
of the BIA’s affirmance of the IJ’s removal order and the
BIA’s denial of their motion to reopen. We consolidated the
petitions for review pursuant to 8 U.S.C. § 1252(b)(6). We
consider each in turn.
3
The Notice to Appear also alleged that the Kawashimas were remov-
able for having been convicted of aggravated felonies under
§ 1101(a)(43)(M)(ii), but that allegation is not before us here.
1660 KAWASHIMA v. HOLDER
II
A
We are faced with the task of determining whether Mr.
Kawashima’s conviction for willfully making and subscribing
to a false statement on a tax return, in violation of § 7206(1),
and Mrs. Kawashima’s conviction for aiding and assisting in
the preparation of a false tax return, in violation of § 7206(2),
constitute aggravated felonies. Section 1101(a)(43)(M)
defines an “aggravated felony” to include “an offense that (i)
involves fraud or deceit in which the loss to the victim or vic-
tims exceeds $10,000; or (ii) is described in section 7201 of
Title 26 (relating to tax evasion) in which the revenue loss to
the Government exceeds $10,000.” 8 U.S.C.
§ 1101(a)(43)(M)(i)-(ii).
As a threshold statutory interpretation matter, we must
decide whether tax offenses other than those described in
§ 7201 qualify as aggravated felonies under subsection (M)(i).4
In their supplemental brief to this court, the Kawashimas
renew their argument, first raised in their opining brief, that
subsection (M)(i) is inapplicable in this case. They reason that
subsection (M)(ii)’s specific reference to § 7201 indicates
Congress’s intent to exclude all federal tax offenses from the
definition of aggravated felonies under the more general sub-
section (M)(i). In our initial opinion in this case, we rejected
this argument. Kawashima v. Gonzales (“Kawashima I”), 503
F.3d 997, 999-1001 (9th Cir. 2007). Our ultimate view of this
issue remains unchanged.
[1] The plain text of subsection (M)(i) sets forth two
4
The Kawashimas’ convictions do not constitute aggravated felonies
under subsection (M)(ii) because that provision is limited to tax offenses
in violation of § 7201. Mr. Kawashima was convicted under § 7206(1) and
Mrs. Kawashima was convicted under § 7206(2). See United States v.
Roselli, 366 F.3d 58, 62 n.5 (1st Cir. 2004).
KAWASHIMA v. HOLDER 1661
requirements for an offense to qualify as an aggravated fel-
ony. First, the offense must “involve fraud or deceit.” Second,
the “loss to the victim or victims” must exceed $10,000. Fer-
reira v. Ashcroft, 390 F.3d 1091, 1096 (9th Cir. 2004). In our
view, §§ 7206(1) and (2) necessarily “involve fraud or deceit”
because the provisions require the government to prove either
that the defendant “willfully” subscribed to a statement in a
tax return he did not believe to be true, or that the defendant
“willfully” aided and assisted in the making of a false or
fraudulent return. Moreover, because the government is a
qualifying victim, see, e.g., Balogun v. U.S. Attorney Gen.,
425 F.3d 1356, 1361 (11th Cir. 2005), a tax loss in excess of
$10,000 satisfies the second prong of subsection (M)(i). Thus,
according to the plain meaning of the statutory language, con-
victions for violating §§ 7206(1) and (2) in which the tax loss
to the government exceeds $10,000 constitute aggravated fel-
onies under subsection (M)(i). Aguelles-Olivares v. Mukasey,
526 F.3d 171, 175 (5th Cir. 2008). And because such interpre-
tation does not lead to an absurd or unreasonable result, our
inquiry must end.5
We recognize that a divided panel of the Third Circuit
reached a contrary conclusion in Ki Se Lee v. Ashcroft, 368
F.3d 218 (3d Cir. 2004).6 There, the court found that the pres-
ence of subsection (M)(ii) reflected Congress’s intent to spec-
ify tax evasion as the only removable tax offense, and thereby
5
United States v. King, 244 F.3d 736, 740 (9th Cir. 2001) (“Unless the
plain meaning leads to an absurd or unreasonable result, which it does not
here, our ‘judicial inquiry is at an end.’ ” (citation omitted)); see also
United States v. Gonzales, 520 U.S. 1, 8 (1997) (“Where there is no
ambiguity in the words, there is no room for construction. The case must
be a strong one indeed, which would justify a court in departing from the
plain meaning of words . . . in search of an intention which the words
themselves did not suggest.” (internal citation and quotation marks omit-
ted, alteration in original)).
6
We note that since our decision in Kawashima I, the Fifth Circuit has
explicitly joined us in rejecting the Third Circuit’s approach. Arguelles-
Olivares, 526 F.3d at 174.
1662 KAWASHIMA v. HOLDER
exclude tax offenses from the scope of subsection (M)(i).
Writing in dissent, however, then-Judge (now Justice) Alito
concluded that the plain text of subsection (M)(i) did not pre-
clude the inclusion of tax offenses within its definition of
aggravated felonies. Id. at 226 (Alito, J., dissenting). We are
persuaded by Judge Alito’s interpretation of the statute.
The court in Ki Se Lee applied two interpretive canons in
support of its reading. First, the court applied the canon that
prescribes that, whenever possible, a statute should be inter-
preted to avoid rendering other provisions superfluous. Id. at
223. In the court’s view, reading subsection (M)(i) to include
tax offenses would render subsection (M)(ii) superfluous
because any of the tax evasion offenses described by § 7201
would fall within the scope of subsection (M)(i)’s “fraud or
deceit” provision. Id. at 222-23. Second, the court applied the
familiar canon that the “specific governs the general.” Id. at
223. Noting that subsection (M)(i) is a general provision that
covers “fraud and deceit” and subsection (M)(ii) is a narrower
provision that only covers federal tax evasion, the court rea-
soned that this canon also supported its conclusion that tax
evasion in violation of § 7201, as described in subsection
(M)(ii), is the only removable tax offense. Id. at 224.7
While such canons are valuable tools in interpreting a stat-
ute’s text, it is unnecessary to resort to these devices where,
as with subsection (M)(i), the statutory text is clear. See Ki Se
Lee, 368 F.3d at 226 (Alito J., dissenting); see also Clark v.
Martinez, 543 U.S. 371, 385 (2005). Subsection (M)(i) plainly
categorizes an offense as an aggravated felony as long as it
includes two elements, “fraud and deceit” and loss to the vic-
tim in excess of $10,000. No further limitations are imposed.
7
The Kawashimas also argue that the canon that construes ambiguities
in a deportation statute in favor of the alien supports their argument that
subsection (M)(ii) precludes the inclusion of tax offenses in subsection
(M)(ii). That canon, however, is inapplicable where, as in this case, the
statutory language is clear. See Cardoza-Fonseca v. INS, 480 U.S. 421,
449 (1987).
KAWASHIMA v. HOLDER 1663
Further, the interpretation adopted by the court in Ki Se Lee
imputes an intent to Congress that is not supported by the stat-
ute’s text. As the dissent in Ki Se Lee noted, “[i]f Congress
had not wanted subsection (M)(i) to apply to ‘tax offenses,’
Congress surely would have included some language in that
provision to signal that intention. As adopted, however, sub-
section (M)(i) contains no such hint.” Id.
Finally, there are many reasons why Congress might have
included subsection (M)(ii) even though many, if not all, of
the tax offenses it describes would fall within the scope of
subsection (M)(i). As the dissent in Ki Se Lee emphasized,
“[s]ubsection (M)(ii) may have been enacted simply to make
certain—even at the risk of redundancy—that tax evasion
qualifies as an aggravated felony.” Id. Although we recognize
that the avoidance of surplusage in statutory text is an impor-
tant goal, Congress harbors other important goals as well
when adopting legislation. Judge Alito’s dissent suggested
two examples. First, even if Congress could not think of a tax
evasion offense under § 7201 that would not involve “fraud
or deceit” and therefore be adequately covered by subsection
(M)(i), Congress has often realized its inability to anticipate
every possible type of case, and may have added subsection
(M)(ii) just to ensure that no tax evasion case fell outside sub-
section (M)’s definition of an aggravated felony. Id. at 226.
Alternatively, Congress might have wanted to ensure that no
court would hold that tax evasion falls outside the definition
of an aggravated felony simply because “fraud” and “deceit”
are not specific elements of that offense. Id. at 226-27.
[2] We therefore respectfully decline to adopt the Third
Circuit’s interpretation of subsection (M)(i). As noted above,
our view is bolstered by the Fifth Circuit’s recent decision to
reject Ki Se Lee in light of our prior holding in Kawashima
I. Arguelles-Olivares, 526 F.3d at 174. Accordingly, we reaf-
firm that tax offenses not covered by subsection (M)(ii)’s spe-
cific reference to § 7201 qualify as aggravated felonies under
subsection (M)(i) where the loss exceeds $10,000.
1664 KAWASHIMA v. HOLDER
B
Our next task is to determine whether the Kawashimas’
convictions under §§ 7206(1) and (2) are aggravated felonies
within subsection (M)(i)’s definition. In answering this ques-
tion, we have the benefit of the Supreme Court’s recent opin-
ion in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), which
explained the analysis we must follow in answering this ques-
tion. In Nijhawan, the Court considered the applicability of
subsection (M)(i) to Manoj Nijhawan, an alien who was con-
victed for a variety of federal fraud offenses. Id. at 2298.
None of the statutes under which Nijhawan was convicted
required the government to prove the amount of his victims’
loss to the jury. At sentencing, however, Nijhawan stipulated
that the total loss to his victims exceeded $100 million. Id.
[3] Based on these convictions, the government sought to
remove Nijhawan from the United States, arguing that his
conviction for fraud and his stipulation at sentencing com-
bined to demonstrate that his conviction constituted an aggra-
vated felony under subsection (M)(i). The Court agreed with
the government. In so doing, it added a new step to the famil-
iar categorical/modified-categorical approaches first
announced in Taylor v. United States, 495 U.S. 575 (1990).
Nijhawan, 129 S. Ct. at 2298. Under this approach, we must
first decide whether a requirement under a generic crime is an
“element” of the generic crime instead of simply a description
of the “particular circumstances” in which the offender com-
mitted the crime on a specific occasion. Id. at 2298. If the
requirement is an “element,” we apply the Taylor approach;
if the requirement is “circumstance specific,” we ensure that
the BIA used “fundamentally fair procedures” to determine
whether the offender’s crime satisfies the description of the
generic offense. Id. at 2302-03.
With these principles of analysis established, we consider
Akio and Fusako’s cases separately.
KAWASHIMA v. HOLDER 1665
1
[4] The information, plea agreement, and admission in Mr.
Kawashima’s case establish that he was convicted of violating
§ 7206(1). That section has four elements: “(1) the defendant
made and subscribed a return, statement, or other document
that was incorrect as to a material matter; (2) the return, state-
ment, or other document subscribed by the defendant con-
tained a written declaration that it was made under the
penalties of perjury; (3) the defendant did not believe the
return, statement, or other document to be true and correct as
to every material matter; and (4) the defendant falsely sub-
scribed to the return, statement, or other document willfully,
with the specific intent to violate the law.” United States v.
Boulware, 384 F.3d 794, 810 (9th Cir. 2004) (emphasis
added). Thus, Mr. Kawashima’s conviction under § 7206(1)
necessarily involved “fraud or deceit.” See Ki Se Lee, 368
F.3d at 226 (Alito, J., dissenting) (“ ‘Fraud’ or ‘deceit’ is a
necessary element of 26 U.S.C. § 7206(1) . . . .”).
[5] Moreover, the BIA followed fundamentally fair proce-
dures in finding that the offense for which Mr. Kawashima
was convicted resulted in a loss to the government of more
than $10,000. Specifically, Mr. Kawashima stipulated in the
plea agreement that the “total actual tax loss” was $245,126.
Given that in Nijhawan, the Supreme Court relied on such a
stipulation to conclude that a petitioner’s prior crime was an
“aggravated felony” under subsection (M)(i), we cannot con-
clude that the BIA’s reliance on such a stipulation in this case
was improper.
Based on the evidence available to us in the administrative
record, we conclude that clear and convincing evidence sup-
ports the BIA’s determination that Mr. Kawashima’s convic-
tion under § 7206(1) constitutes an aggravated felony as
described in subsection (M)(i) because it involved “fraud or
deceit” and because his offense resulted in a loss to the gov-
ernment in excess of $10,000. Accordingly, we deny Mr.
1666 KAWASHIMA v. HOLDER
Kawashima’s petition for review of the BIA’s affirmance of
the IJ’s order.
2
[6] The record of conviction in Mrs. Kawashima’s case
establishes that she was convicted of aiding and assisting in
the preparation of a false tax return, in violation of § 7206(2).8
That section requires the government to prove the following:
“(1) the defendant aided, assisted, or otherwise caused the
preparation and presentation of a return; (2) that the return
was fraudulent or false as to a material matter; and (3) the act
of the defendant was willful.” United States v. Salerno, 902
F.2d 1429, 1432 (9th Cir. 1990) (emphasis added). Moreover,
as we observed in Salerno, “[t]he Supreme Court has repeat-
edly held that in order to make out a ‘willful violation’ of sec-
tion 7206(2) the government must prove defendants acted
with specific intent to defraud the government in the enforce-
ment of its tax laws.” Id. Thus, a conviction under § 7206(2)
necessarily “involves fraud or deceit” and therefore satisfies
the first element of an aggravated felony as described in sub-
section (M)(i).
As to the second element, in Kawashima I we concluded
that the record of conviction did not contain sufficient evi-
dence to establish that Mrs. Kawashima’s offense resulted in
a loss to the government in excess of $10,000. 503 F.3d at
8
In their supplemental brief to this court, petitioners assert that Mrs.
Kawashima’s case is no longer before us because after our first opinion
in this case granted Mrs. Kawashima’s petition for review, the government
did not file a petition for rehearing. We are unpersuaded by this argument.
Although it is true that the government did not ask us to reconsider our
resolution of Mrs. Kawashima’s case, we are entitled to do so as we have
not yet issued our mandate in this case. As such, our decision remains sub-
ject to modification, either at the request of a party or sua sponte. See Fin-
berg v. Sullivan, 658 F.2d 93, 96 n.5 (3d Cir. 1980) (en banc). Thus, Mrs.
Kawashima’s case remains before us, and we are obligated to decide the
merits of her petitions for review in light of Nijhawan.
KAWASHIMA v. HOLDER 1667
1003-04. That conclusion was predicated on our assumption
that our analysis should proceed under Taylor’s modified cat-
egorical approach, and therefore the scope of our review was
limited to the types of documents described in Shepard v.
United States, 544 U.S. 13, 20 (2005), and its progeny.
[7] That assumption, it turns out, was wrong. In Nijhawan,
the petitioner argued that an immigration court deciding
whether an aggravated felony meets subsection (M)(i)’s
$10,000 threshold should look only to the “charging docu-
ments, jury instructions, and any special jury finding (if one
has been requested). If there was a guilty plea (and no trial)
the subsequent court should examine the written plea docu-
ments or the plea colloquy.” 129 S. Ct. at 2302. The Court
rejected this argument, stating that
nothing in prior law that so limits the immigration
court . . . . [T]he cases that developed the evidentiary
list to which [Nijhawan] points[ ] developed that list
for a very different purpose, namely that of deter-
mining which statutory phrase (contained within a
statutory provision that covers several different
generic crimes) covered a prior conviction. For
another, [Nijhawan’s] proposal itself can prove
impractical insofar as it requires obtaining from a
jury a special verdict on a fact that . . . is not an ele-
ment of the offense.
Further, a deportation proceeding is a civil pro-
ceeding in which the Government does not have to
prove its claim “beyond a reasonable doubt.”
Id. at 2303. Thus, the BIA is not limited to only those docu-
ments which a court applying the modified categorical
approach may review.
Given this, the government argues that we should remand
this case to the BIA so that the agency may determine, in the
1668 KAWASHIMA v. HOLDER
first instance, what additional types of evidence it may con-
sider under this newly announced standard and so that the
government may have the opportunity to introduce evidence
to meet this standard. We agree. In I.N.S. v. Ventura, the
Supreme Court summarily reversed a Ninth Circuit decision
refusing to remand a case to the BIA so that it could deter-
mine whether changed country conditions rendered an alien
ineligible for asylum. 537 U.S. 13, 15 (2002) (per curiam).
The Court held that the Ninth Circuit had erred in deciding
the “changed circumstances” matter on its own, observing
that “[g]enerally speaking, a court of appeals should remand
a case to an agency for decision of a matter that statutes place
primarily in agency hands.” Id. at 15-17. Remand is required
so that “[t]he agency can bring its expertise to bear on the
matter; it can evaluate the evidence; it can make an initial
determination; and, in doing so, it can, through informed dis-
cussion and analysis, help a court later determine whether its
decision exceeds the leeway that the law provides.” Id. at 17;
see also Gonzales v. Thomas, 547 U.S. 184 (2006) (per
curiam).
Since Ventura, we have distinguished between circum-
stances in which remand is necessary to permit the BIA to
apply its expertise in reconsidering evidence and circum-
stances in which remand is unnecessary because the BIA
exercised its expertise before the case came before us. Thus,
in Fernandez-Ruiz v. Gonzales, we refused to remand a case
to the BIA so that it could determine whether the evidence
present on an alien’s record of conviction established that the
conviction was a “crime of domestic violence” rendering him
removable. 466 F.3d 1121, 1134-35 (9th Cir. 2006) (en banc).
We distinguished Ventura, noting that it “undeniably involved
an issue the BIA had not considered.” Id. at 1133. By con-
trast, in Fernandez-Ruiz, the BIA had considered whether the
petitioner’s state conviction constituted a crime of domestic
violence—it had simply conducted this inquiry under the cate-
gorical, rather than modified categorical, approach. Id. at
1134-35. We did not consider remanding the case for the gov-
KAWASHIMA v. HOLDER 1669
ernment to supplement the record of the petitioner’s convic-
tion because the government did not ask that we do so. Id. at
1135.
[8] This case, however, is ripe for remand. Our remand
does not ask the BIA to consider whether evidence currently
on the record is sufficient to demonstrate that Mrs. Kawashi-
ma’s conviction is an “aggravated felony.” Cf. Ruiz-Vidal v.
Gonzales, 473 F.3d 1072, 1080 (9th Cir. 2007) (holding that
we need not remand to the BIA so that it may apply the cate-
gorical approach). Instead, we remand to the BIA so that it
may determine, in light of the Supreme Court’s holding in
Nijhawan, what types of evidence it may consider to deter-
mine the total loss suffered by the government as a result of
Mrs. Kawashima’s crime.
III
Our final task is to determine whether the BIA erred in
denying the Kawashimas’ motion to reopen.9
9
The government contends that we lack jurisdiction over the Kawashi-
mas’ petition for review of the BIA’s decision, citing 8 U.S.C.
§ 1252(a)(2)(c). That provision strips a court of jurisdiction to review “any
final order of removal against an alien who is removable by reason of hav-
ing committed” certain offenses, including an “aggravated offense.” See
8 U.S.C. § 1252(a)(2)(c); see also id. § 1227(a)(2)(A)(iii). However, the
government’s argument ignores § 1252(a)(2)(D), which provides that,
despite subsection (c), a court remains vested with the jurisdiction to
review “constitutional claims or questions of law raised upon a petition for
review.”
As a threshold matter, the Kawashimas argue that the BIA applied the
incorrect regulation when it determined that their motion was untimely.
Whether the BIA applied the appropriate regulation is decidedly a “ques-
tion of law” over which we retain jurisdiction. See Florez-de Solis v. INS,
796 F.2d 330, 333 (9th Cir. 1986) (“[Petitioner’s] contention that the BIA
applied an incorrect standard is a question of law reviewed de novo.”).
1670 KAWASHIMA v. HOLDER
A
[9] Mr. Kawashima argues that his motion to the BIA was
a special motion pursuant to 8 C.F.R. § 1003.44 to seek
§ 212(c) relief. Section 1003.44 “applies to certain aliens who
formerly were lawful permanent residents, who are subject to
an administratively final order of deportation or removal, and
who are eligible to apply for relief under former section
212(c) of the Act and 8 CFR § 1212.3 with respect to convic-
tions obtained by plea agreements reached prior to a verdict
at trial prior to April 1, 1997.” 8 C.F.R. § 1003.44(a). To
obtain relief under this provision, an alien “must file a special
motion to seek section 212(c) relief on or before April 26,
2005.” Id. § 1003.44(h). Furthermore, the provision imposes
strict procedural requirements. In particular, the alien’s
motion “must contain the notation ‘special motion to seek sec-
tion 212(c) relief.’ ” Id. § 1003.44(f) (emphasis added).
Mr. Kawashima claims that the required notation appears
on page nine of the Kawashimas’ motion. However, this page
fails to contain any of the necessary text. Instead, it simply
quotes 8 C.F.R. § 1003.44(b), which states, among other
things: “Generally, a special motion under this section to seek
section 212(c) relief must establish that the alien . . . .” This
language fails in all respects to comply with the strict require-
ments imposed by 8 C.F.R. § 1003.44(h) and was inadequate
to place the BIA and the district counsel on notice that Mr.
Kawashima intended to make a special motion to seek
§ 212(c) relief.
[10] Standing alone, Mr. Kawashima’s failure to include
the precise language required by § 1003.44(h) is a sufficient
basis on which to reject his attempt to construe the Kawashi-
mas’ motion as one seeking § 212(c) relief. Even if it were
not, however, the cover page and first page of the motion state
no less than four times: “Motion to Reopen Proceedings and
Stay Deportation Under Magana-Pizano v. INS.”10 A motion
10
The motion contained no citation to Magana-Pizano, but Mr.
Kawashima might have been referring to our opinion in Magana-Pizano
KAWASHIMA v. HOLDER 1671
styled in this manner cannot reasonably be spared by text hid-
den in a lengthy quote found on page nine of the brief.
[11] Section 1003.44 does not require mere notice, it
imposes strict procedural requirements to qualify for relief,
including the notation “special motion to seek section 212(c)
relief.” Accordingly, we conclude that the BIA did not err in
applying the 90-day filing deadlines for general motions to
reopen pursuant to 8 C.F.R. § 1003.2(c)(2) and in denying
Mr. Kawashima’s motion to reopen as untimely because it
was filed almost eight months late.11 Therefore, we deny Mr.
Kawashima’s petition for review of the BIA’s denial of the
motion to reopen.
B
Since we have granted Mrs. Kawashima’s petition for
review, we dismiss her petition for review of the BIA’s denial
of her motion to reopen as moot. See Goldeshtein v. INS, 8
F.3d 645, 646 n.1, 650 (9th Cir. 1993) (dismissing as moot
petitioner’s motion to reopen after concluding that the peti-
tioner is not removable because he was not convicted of a
predicate offense involving moral turpitude).
v. INS, 200 F.3d 603 (9th Cir. 1999). Although that opinion did discuss
§ 212(c) and the Antiterrorism and Effective Death Penalty Act in that
opinion, it did not concern a motion to reopen. In any event, the motion’s
reference to Magana-Pizano does not comply with the requirements
imposed by 8 C.F.R. § 1003.44(f).
11
Pursuant to 8 C.F.R. § 1003.2(c)(2), a general motion to reopen “must
be filed no later than 90 days after the date on which the final administra-
tive decision was rendered in the proceeding sought to be reopened, or on
or before September 30, 1996, whichever is later.” The BIA’s final admin-
sitrative decision upholding the IJ’s order of removal was rendered on
August 16, 2004. The Kawashimas filed their motion to reopen on April
26, 2005 (or April 27, 2005), more than eight months after the BIA’s final
decision.
1672 KAWASHIMA v. HOLDER
IV
For the foregoing reasons, the petition for review of the
BIA’s affirmance of the IJ’s removal order is DENIED with
respect to Akio Kawashima (04-74313) and GRANTED and
REMANDED with respect to Fusako Kawashima (05-
74408). The petition to review the BIA’s denial of the motion
to reopen is DENIED with respect to Akio Kawashima (04-
74313) and DISMISSED as MOOT with respect to Fusako
Kawashima (05-74408).